Tag Archives: lawsuits against Harvard

Several years ago a Korean student in one of my precept classes at Princeton told me of the shock and anger among Asian students at his expensive California private high school when college acceptance letters arrived in late spring. What really stoked the anger of many of his Asian classmates, he said, was the fact that the student in his class who did best in the college admission process was a Black female who applied to several of the most competitive universities in the nation and gained acceptance to every one of them, eventually choosing to enroll in Stanford.

“There were loads of Asian students with much better grades, much higher SAT scores, and who were much more active in the student council and a host of other extracurricular activities,” he said. To add insult to injury, he went on, this particular female student had a cold, off-putting, unfriendly personality — “she didn’t make it on charm” was the thrust of his additional remarks. To many classmates the college admission system seemed rigged against Asians and absurdly tilted in favor of Blacks.

High SAT scores, top grades, extracurricular activities, and an ingratiating charm may not have been the strong suit of this particular Black prep school student, but as those of us who have kept abreast of college admissions policies over the years know, being an “under-represented minority” can make up for a lot of lost ground. Checking off the “Black” box on a college application rather than “Asian,” far from being the slight “thumb on the scale” that college administrators would like outsiders to believe, can be an enormous advantage in the college admission process, often counting as much or more than being a top athletic recruit.

In a widely publicized study of eight highly competitive colleges and universities, sociologists Thomas Espenshade and Alexandria Radford found that on an “other things equal” basis in which adjustments were made for a large number of background factors, the Black-over-Asian advantage in college admissions was equivalent to 450 SAT points on a 1600 point scale (e.g. an 1100 Black score, other things being equal, carried the same weight in admissions as an Asian score of 1550).

Ceiling Quotas

Although they will invariably lie about it, many of the country’s top colleges and universities — including all of the Ivies — have informal “ceiling quotas” for Asian students, and informal “minimum quotas” for Blacks, not wanting “too many” of the one or “too few” of the other. Applicants from the high-achieving Asian group are at a huge disadvantage in the admissions process compared to both Black and Latino applicants since the universities resort to something very much like “race norming” — i.e. “within racial group” competition in which Asians, Latinos, and Blacks essentially compete only among themselves for a predetermined number of admits based on what is seen as a desirable racial balance.

The numerical quota and desired racial balance are slightly flexible in that they are allowed to vary within a narrow range from year to year depending on the quality of the applications received, but they are not permitted to stray too far from a predetermined racial proportionality goal. Applicants from the different ethno-racial groups most certainly do not compete on a merit-only basis among the total applicant pool — a system that would lead to a huge increase in the number of Asian students and a corresponding decline in the number of both Blacks and Latinos. Merit-based systems, like those forced by popular ballot initiative upon Berkeley and UCLA, produce what most academic administrators at the Ivy League universities find unacceptable — i.e. a huge “over-representation” of the high achieving Asians and a corresponding “under-representation” of the much lower achieving Blacks and Latinos.

A Turn to Litigation

Despite the fact that they have been injured the most by racial preference policies, Asians throughout most of the affirmative action era have been rather quiescent in terms of public protest. Like the Korean student in my precept class, individual Asians will protest privately what they see as outrageous racial double standards in university admissions, but they have not shown much interest in organized protest. However, things may be changing, and the preferred vehicle of change seems to be an aggressive litigation strategy rather than legislative lobbying, campaigns to change public opinion, or organized street protests. In choice of strategies, the Asians of late seem to be following in the footsteps of the old NAACP’s Legal Defense Fund, which pursued a similar litigation strategy against racial discrimination in the middle decades of the last century.

Thomas Espenshade describes how the Asian community’s long-simmering anger over affirmative action policies may finally be entering the realm of organized protest. “Up until five or ten years ago,” Espenshade says, “the [Asian] response [to affirmative action] has been, ‘Well we just have to work harder.’ But over the last decade, more groups are starting to mobilize, saying we don’t have to just accept this, we can push back against it.”

The most recent example of this pushing back occurred earlier this month when a formal complaint against Harvard University was lodged on behalf of a coalition of several dozen Asian groups with the civil rights divisions of both the U.S. Justice and Education departments. Sixty-four Chinese, Korean, Asian Indian, and Pakistani groups, organized under an umbrella organization called the Coalition of Asian American Associations, were alarmed by the much higher standards to which Asians are held in the college admission process and what are in effect implicit Asian ceiling quotas. Much of the driving force behind the litigation and the organization of the complainants was the work of Yukong Zhao, a 55-year-old Chinese executive from Florida, who is the author of a much-underappreciated book on Confucian values and how they have propelled so many Asians to high levels of achievement in America.

Espenshade and Radford

The Asian group’s complaint reveals a clear understanding of the informal “race-norming” policies in place at Harvard and other elite universities. “Asian-Americans understand that they are not competing for admission to Harvard against the entire applicant pool,” the Coalition charged in its complaint. “In light of Harvard’s discriminatory admissions policies, they are competing only against each other — all other racial and ethnic groups are insulated from competing against high-achieving Asian-Americans. Because Asian-Americans congregate at the high end of Harvard’s applicant pool, the competition is fierce. This has deterred and continues to deter many qualified Asian-Americans from [even] applying to Harvard.”

The Coalition drew upon many sources in its complaint, including the scholarly work of Espenshade and Radford and the important study of quota-like admissions at the eight Ivy League universities presented by Ron Unz in his influential study “The Myth of American Meritocracy.” It is difficult to read authors like Unz and Espenshade/Radford without concluding, as the Asian Coalition did, that our most elite universities practice something very much like the kind of “within-group” race-norming that has been explicitly prohibited by our Supreme Court as violative of both the Equal Protection Clause of the 14th Amendment and Title VI of the 1964 Civil Rights Act. This is the basis of the Coalition’s legal challenge.

A Second Challenge to Harvard

Another legal challenge to Harvard’s admissions policies came last November when a group called the Students for Fair Admissions (SFFA) filed a lawsuit in federal court challenging what was alleged to be illegal racial preference and racial balancing policies at Harvard College, which discriminate against Asian applicants. The SFFA group was the brainchild of the anti-affirmative action activist Edward Blum, who launched a website seeking the names of students who believed they were rejected by Harvard and two other universities because of their race. Blum had earlier been instrumental in connecting Abigail Fisher with attorneys willing to take on her racial discrimination case against the University of Texas at Austin (i.e. the case that led to the ambiguous Fisher v. Texas decision in 2013).

While not a lawyer himself, Blum describes his legal activities as that of a “Yenta match maker” who brings together those he believes have been the victim of affirmative-action-like prejudice (“reverse discrimination”) with suitable attorneys willing to take their case on a pro bono basis. “I find the plaintiff,” he explains, “I find the lawyer, and I put them together.” He receives no money for his activities and is driven entirely by a sense of justice and a sympathy for victims of unseemly race-based public policies.

Harvard seems to be listening. In responding to the discrimination charge of the Asian Coalition, Harvard’s general counsel Robert Iuliano offered the usual boilerplate about “holistic admissions” and a “diverse class,” but he also announced something quite encouraging: the percentage of Asians admitted to Harvard College in its most recent freshmen class had risen to 21 percent. He gave no reason for this modest rise, but when one considers that the percentage of Asians accepted in the recent past at Harvard College has always fluctuated between the narrow bands of 15-20 percent, one gets the impression that something may be changing.

Harvard, one suspects, is beginning to feel the heat. And in the future one can expect that people like Yukong Zhao, Edward Blum, and better-organized Asian complainants will continue to ratchet up the temperature. Harvard and other race-norming institutions are on notice: the days of Asian passivity may be over. The time of Asian protest may have just begun.

Russell K. Nieli is a Senior Preceptor in Princeton University's James Madison Program in American Ideals and Institutions, and a Lecturer in Princeton's Politics Department. He is the author of "Wounds That Will Not Heal: Affirmative Action and Our Continuing Racial Divide."